Unfair Dismissal Claims
‘Unfair dismissal’ arises when the employer does not have a fair reason for dismissing the employee; or does not follow the company’s formal disciplinary or dismissal process. To bring a claim for unfair dismissal you must meet certain criteria.
Firstly, employees must have worked for a qualifying period of two continuous years (unless they’re claiming for an automatically unfair reason). Also, to bring an action for unfair dismissal you must be classed an employee; this is someone who works under an employment contract. A contract is an agreement that sets out an employee’s employment conditions, rights, responsibilities and duties. As soon as someone accepts a job offer they have a contract with their employer. Self-employed people, independent contractors, members of the armed forces or employees under an illegal contract are not entitled to claim for unfair dismissal.
You may have been dismissed for an automatically unfair reason if you fall within the following areas: dismissal for asserting a statutory right, unfair selection for redundancy, unfair retirement, pregnancy or maternity-related dismissal, unfair dismissal for an issue related to trade unions; unfair dismissal before, during or after the transfer of a business, dismissal during or following an industrial dispute or dismissal related to activities as an occupational pension scheme trustee and health and safety dismissals. If it has been established you are eligible to claim unfair dismissal, you will have 3 months minus one day from the date you’re dismissed to make a claim, referred to as your “limitation” period. Before you can submit a claim to the Employment Tribunal you must go through ACAS early conciliation, which will essentially pause the clock on your 3 month limitation period.
If you pursue a claim for unfair dismissal, your employer has the burden of showing your dismissal was based on one of six potentially fair reasons: your conduct, your capability or lack of qualifications, retirement, redundancy, a legal bar meaning your employment cannot continue or “some other substantial reason” to justify your dismissal. It must also be established that your employer used a fair procedure and it was reasonable for the employer to finally decide to dismiss you once the procedure had been carried out.
If you are successful with your claim and it has been established you were dismissed unfairly, there are three remedies available, re-instatement, re-engagement or compensation. If you want your previous job back, you can ask for re-instatement. Or you can ask for re-engagement, which means a different job with the same or an associated employer. A tribunal will not order either remedy unless you request it and very few employees ask for re-instatement or re-engagement. Compensation has two elements, a basic award and a compensatory award. A basic award is calculated the same way as a statutory redundancy payment, how much you receive depends on how long you have been employed, your age, and your weekly pay before tax. The compensatory award allows damages for past, present, and future loss of net earnings, fringe benefits, overtime and bonuses, but is capped at either 12 months gross salary or the statutory cap (currently £78,962) – whichever is lower.